Analysis of new provisions to Title IX regulations released Wednesday by U.S. Secretary of Education Betsy DeVos suggests school employees alleged to be perpetrators of sexual assault or harassment may still be able to fly under the radar. Education law experts corroborate that the new language would allow schools to dismiss sexual harassment, abuse or assault complaints if the alleged perpetrator quits before or during an investigation.

This provision was not originally included in a 2018 rules proposal, which DeVos made available for comment before finalizing regulations, or the original 1975 Title IX regulations that are in effect.  

In a press briefing, DeVos said, “Combined with our efforts to end the indefensible practice of ‘pass the trash’, we are making sure our youngest students, who often get overlooked in discussions of this topic, are no more forgotten.” She added the new language “builds on these efforts.”

The new regulations take effect on Aug. 14.​

Rules would ‘encourage’ the problem

But analysts, researchers and advocates agree the added provision would exacerbate the already-existing problem of “passing the trash” or “passing the problem,” coined phrases that refer to a problem in the U.S. K-12 education system where alleged sex offenders jump from one district to another when allegations or rumors of their misconduct surface. 

“It’s letting the person get off the hook,” said David Bloomfield, a professor of educational leadership, law, and policy at Brooklyn College​ in New York. “It seems to encourage ‘pass the trash’ on a voluntary basis.” 

For example, if an educator is rumored to have sexually harassed or assaulted students and voluntarily quits before or when a formal investigation is launched, the school could dismiss a formal complaint — essentially looking the other way. 

Both the school and the accused employer could benefit from such an arrangement allowed by the language, Bloomfield explained. ​​

And schools that contribute to the cycle by dismissing those complaints would face no repercussions under the new regulations, he said. 

In its discussion, the U.S. Department of Education said it believes the new wording "appropriately permits" schools to dismiss complaints if an employee no longer works there based on "whether a respondent poses an ongoing risk" to the school's community, among other factors.​​​​ That language does not include evaluation of risk posed to other school districts and their communities. 

New language may feed ‘pattern’ 

Jake Sapp, Austin College's deputy Title IX coordinator and compliance officer​​, agreed the new language would “absolutely feed into the problem” of passing on school employees with an alleged history of sexual misconduct to other districts​.  

“If someone can strategically withdraw from employment, they can just move to another area and potentially do the same thing again or hurt other people,” explained law professor and Title IX expert Peter Lake of Stetson University in Florida. “And that actually has been a pattern.”

This trend recently received national attention following the arrest of a top New York City Department of Education official, David Hay, in December 2019 on charges of possession of child pornography and coercion or enticement of a minor.

In that case, an official report revealed Hay’s former employer, Wisconsin’s Kettle Moraine School District (KMSD), signed a non-disclosure agreement that prevented it from disclosing any derogatory information about Hay as long as he resigned from his position as principal in lieu of being fired, and if he agreed to "remain away from schools [and] offices of KMSD at any time."

While the new Title IX regulations hold schools liable if they don’t respond to allegations of sexual misconduct after a school employee is notified, the rules do not seem to prevent districts from entering into a nondisclosure agreement if an employee quits after a complaint was dismissed, multiple analysts familiar with the language confirm. It is important to note those NDAs must "comply with other laws​."

More incidents reported

Additional concerns remain around whether the new Title IX rules could be applied to alleged incidents that occur off school grounds, like in employees' homes or cars or hotel rooms. 

According to the Education Department’s new definitions, Title IX response procedures would only kick in if the alleged sexual harassment occurs in a school’s “education program or activity,” which includes “locations, events, or circumstances” over which the school had “substantial control over both the respondent and the context in which the sexual harassment occurs.” 

This definition, the Education Department said, is “broad.” But it's unclear how broadly or narrowly the scope will be set, as the department said off-campus allegations “may be fact specific.” 

These regulations also come against a backdrop of a reported increase in K-12 sexual harassment and violence complaints filed with the department's Office of Civil Rights. Assistant Secretary for Civil Rights Kenneth L. Marcus​ said last year that those numbers are "nearly 15 times greater" now than a decade ago.

According to the Civil Rights Data Collection data for the 2015-16 school year, there were approximately 9,700 incidents of sexual assault, rape or attempted rape reported in public elementary and secondary schools. 

Technically, the "Prohibition on Aiding and Abetting Sexual Abuse" provision of the 2015 Every Student Succeeds Act (ESSA) prevents public school districts from enabling teachers who sexually abuse students to pursue another job with no record of their sexual misconduct. But a study released last year by the National Institutes of Health found ​​it is "a common practice for K-12 school district administrators who fear legal liability and tarnished reputations."​

"The department will vigorously enforce ESSA to prohibit elementary and secondary school district administrators from shifting from one school to another employees who sexually abuse students, to ensure that our nation’s K-12 students are free to learn and achieve in a safe and nurturing environment," the Education Department said in response to Education Dive's request for comment, adding that "nothing in the Title IX rule preempts the clear language" in ESSA. 

In a recent case involving Chicago Public Schools, the Education Department acknowledged the “systemic and significant deficiencies” related to sexual harassment complaints.

There is also concern the new regulations now tilt that system in favor of the accused rather than the victims, who were protected in rescinded Obama-era guidance. The department says the regulations provide a greater guarantee of due process.